Silva v. Frauenheim

FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF
PETITION FOR WRIT OF HABEAS CORPUS

Petitioner
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.

I.
BACKGROUND

On
November 10, 2011, Petitioner was convicted after a jury
trial in the Merced County Superior Court of second-degree
murder for the benefit of or in association with a criminal
street gang (count 1) and active participation in a criminal
street gang (count 2). (4 CT[1] 727-28). The trial court
sentenced Petitioner to an imprisonment term of fifteen years
to life plus two years. (4 CT 803-06). On January 31, 2014,
the California Court of Appeal, Fifth Appellate District
modified the judgment to provide that execution of sentence
imposed on count 2 is stayed pending service of the remainder
of the sentence and affirmed the judgment as modified.
People v. Silva, No. F064330, 2014 WL 350590, at *18
(Cal.Ct.App. Jan. 31, 2014). The California Court of Appeal
denied a petition for rehearing on February 13, 2014, and the
California Supreme Court denied Petitioner's petition for
review on May 14, 2014. (LDs[2] 10-13).

On May
4, 2015, Petitioner filed the instant federal petition for
writ of habeas corpus. (ECF No. 1). In the petition,
Petitioner raises the following claims for relief: (1) the
trial court's failure to resolve the jury's confusion
regarding the elements of aiding and abetting; (2) the trial
court's erroneous instruction that a murder continues
until the perpetrators reach a temporary place of safety; (3)
the jury inadvertently receiving a legal memorandum that
contained extensive discussion on the natural and probable
consequences doctrine; (4) ineffective assistance of counsel;
and (5) cumulative effect of trial errors. Respondent has
filed an answer, and Petitioner has filed a traverse. (ECF
Nos. 17, 21).

Shortly after 11:00 p.m. on November 6, 2009, a group of men
walked into the Pastime Club in Gustine.[4] In the group were
defendant, who was wearing a black T-shirt; Albert Aleman,
who was wearing a white T-shirt; Richard Naudin, who was
wearing a hoodie; Brandon Carvalho, who was wearing a black
and white Raiders jacket; identical twins Mark and Anthony
Oseguera, one of whom was wearing a long jacket and thermal
shirt, and the other of whom was wearing a long-sleeved white
shirt; and Andrew Silva. All were members of the Mongols
outlaw motorcycle gang except Silva, who was an affiliate.
They appeared to search the bar, then left.

A short time later, Ashley Klug, Sara Galas, Bill James,
Denise Gibbons, Amaro Morais, and Jennifer Herbst were in the
Gustine Club when a group of men walked in. To Herbst, the
men looked like gang members.[5] At least part of the
group-including defendant-headed for James, yelling something
like, “Mongols, motherfucker, Mongols, Mongols.
What's up? Mongols.” They surrounded James, who
responded, “I don't give a shit” or “I
don't give a fuck who you are, ” and started to
take off his jacket. Klug heard the sound of a knife opening.
Galas saw defendant make a motion like he was flipping out a
knife and she heard a knife open, although she did not see a
weapon. Morais saw one of the men make a motion with his
hand, and he heard a “flick” that sounded like a
knife.

James had his jacket about halfway off when the man with the
gray hoodie struck him in the face and all but one of the
rest attacked James. Klug, who was sitting next to James, did
not see James actually get stabbed, but when she got home,
she found blood on her sweater. Gibbons similarly did not see
James get stabbed, but she believed defendant was one of the
men who lunged for James.

Morais saw someone between defendant and James, and defendant
leaning over, making a motion that kind of went over the top
and down on James. The one who Morais believed had a knife
was making a thrusting motion. Morais grabbed this man from
behind and was trying to pull him off when the man who had
not joined in the attack pulled a canister about the size of
a small fire extinguisher from inside his shirt and
discharged pepper spray or a similar substance.[6] Morais could not
see, but he felt everyone “swarming” toward the
front door. Morais managed to run out where he saw James
standing in the doorway of a white extended-cab pickup. It
was parked in one of the parking stalls, the passenger side
door was open, and James was fighting with someone in the
backseat.

James was throwing punches when defendant, whom Morais
described as wearing a white T-shirt with a Mongols insignia
on the back, ran up behind James and stabbed him twice in the
back with a 10- to 12-inch knife.[7] Defendant then ran behind
the truck. He kind of threw his hands up and said something
to James, then ran off. Morais did not know where he went; he
was looking at James, and all the vehicles took off. James
fell to the ground, bleeding badly in several places.

Gibbons saw James collapse. She bent down to see what was
wrong with him, and her hands came up “full of
blood.” She saw a “silverish” extended-cab
pickup pull away with the passenger side door partially open.
Galas saw the men who had attacked James jump in two or three
different vehicles. One was a car, but defendant got in a
dark-colored, black or charcoal gray truck. Herbst saw people
jumping into a white Chevrolet Tahoe and a gray pickup and
quickly driving away.

Gustine Police Officer Warner was the first officer on the
scene, arriving shortly after 11:36 p.m. He found James
covered in blood and face down, partly in the roadway and
partly on the sidewalk, in front of the Gustine Club. A
subsequent autopsy revealed James had seven sharp force
injuries (stab and incised wounds) to his body.[8] Two of the wounds
had an estimated depth of penetration of nine inches. Of
these, one nearly cut the liver in half, passed through the
diaphragm and one lung, and nicked the superior vena cava (a
large vessel around the heart). The other penetrated the
back, entered the abdominal cavity, and incised multiple
loops of small bowel. Two of the other wounds had an
estimated depth of penetration of four inches. One of these
passed through part of one lung. The other penetrated a lung,
incised the pericardium, and involved the vital structure
near the center of the lung itself. The cause of death was
multiple stab wounds. It was possible two or more knives were
used. The mechanism of death was bleeding to death, a process
that takes time that varies with the underlying health of the
person. Given James's wounds, he would have had the
ability to continue to move and attempt to defend himself
even though he received, what turned out to be, a mortal
wound.

At approximately 11:30 p.m., Merced County Sheriff's
Deputy Daniel headed from Los Banos toward Santa Nella in
search of a white Chevrolet Tahoe last seen headed southbound
on Highway 33. As he came down the overpass on Henry Miller
Road, he saw a white Chevrolet Tahoe southbound on Highway
33. It was followed so closely by a silver pickup that Daniel
equated it to a Nascar race, with the pickup drafting the
Tahoe.[9] Both vehicles turned into the parking lot
of the Ramada Inn (now, the Hotel De Oro), then the Tahoe
went north and the pickup went south.

As Daniel came around the north side of the hotel and
approached the Tahoe, four to six males ran around the
vehicle then they went into the hotel.[10] Daniel backed
into the corner of the parking lot, where he could watch the
Tahoe, and called for additional units. The men did not
return. A group of 10 or more other men came out and were in
the breezeway adjacent to the vehicle, but they never
actually approached the Tahoe. Two males, a Hispanic female,
and a White female exited the upstairs east wing of the
facility. The White female came down the stairwell, opened
the Tahoe with a remote, retrieved some items, and went back
upstairs. She made three trips in all, then went back inside,
followed by the Hispanic female and the two males.

After other officers arrived and established a perimeter, an
approximately 16- inch-long sheath or scabbard that said
“Mongols” was found lying in front of the Tahoe.
Near the sheath was a black beanie/watch cap with a red stain
on it that could have been blood. Another black beanie was
found on the south side of the parking lot.

The Tahoe and the pickup were impounded and processed for
evidence. James's blood was found in several locations
both inside and outside the pickup, on the passenger side.
Although defendant was excluded as a possible contributor to
any of the blood samples taken from the pickup, his
thumbprint was found on a snack bag inside the vehicle.
James's blood was also found in several locations inside
the Tahoe, as was blood from Mark or Anthony
Oseguera.[11] Defendant was excluded as a possible
contributor to any of the blood samples taken from the Tahoe.
Fingerprints from Aleman and Naudin were found on or in the
Tahoe.

The next morning, November 7, a maintenance worker at the
hotel found a long-sleeved, white cotton shirt with red
stains around the cuff and a large hunting-type knife under
the first step of the back stairway at the east end of the
building. The knife-which Morais testified “look[ed]
very much” like the knife he saw used to stab James in
the back-was next to the shirt. Traces of blood belonging to
James and Mark and/or Anthony Oseguera were found on the
blade. Defendant was excluded as a possible contributor. A
mixture of DNA was found on the handle; Anthony and Mark
Oseguera were possible contributors, James could not be
excluded as a possible contributor, and defendant was
excluded as a possible contributor. A black, white, and
gray-plaid flannel shirt/jacket, and one or more white
T-shirts, were found in a garbage can at a different location
at the hotel.[12]Defendant's DNA was found on the
collar of one of the T-shirts.

That same morning, a black-handled folding knife was
discovered near the street end of one of the parking stalls
down the block from the Gustine Club. Traces of James's
blood were found on the handle. A DNA mixture of at least
three contributors was also found on the knife. Mongol Rafael
Valdez was included as a possible major
contributor.[13] Defendant was excluded as a possible
contributor toward either sample.

Later that day, defendant went to the Gustine Police
Department to try to get the pickup released from impound.
Defendant, who gave a home address in Whittier, explained he
had arrived at the motel about 4:00 p.m. Friday afternoon,
and had gone by himself to a bar in Gustine. He could not
recall the name of the bar.[14]Defendant related that he
walked in to get a drink, saw a commotion and Mace being
sprayed, got scared, ran out, and got in the truck. As he
started backing out, “some ... dude” started
“jumping at” the vehicle and tried to lunge
through the window. Defendant “threw [the truck] in
reverse” and took off. Nobody was in the vehicle with
him. (Full capitalization omitted.) Defendant had Mace in his
eyes and could not describe the person, but when he got back
to the hotel, he saw blood on the passenger door, which was
the side through which the person had tried to gain entry.
Defendant used a rag to clean it off. Defendant denied
affiliating with the Mongols or having any friends who were
Mongols. He denied having seen the individual before or
exchanging words with him.

Sergeant Christopher Cervantes of the Montebello Police
Department testified as an expert on the
Mongols.[15] Cervantes explained that the Mongols are
commonly referred to as a “one-percenter gang, ”
meaning they belong to the one percent of American
motorcyclists who are not law-abiding. The Mongols (who had
250 to 300 members in 2009) engage in both criminal and
noncriminal activities. Their criminal activities include
petty theft of motorcycle parts, grand theft of motorcycles,
drug sales, firearms proliferation, witness intimidation,
violent assaults, and murder. Cervantes testified that,
although Mongols have enemies among the Mexican
Mafia-affiliated Sureño street gangs in Southern
California, their “most bitter and probably bloody
rival” is the Hell's Angels, an enmity that has
endured for years. The Mongols-whom Cervantes characterized
as even more violent than the Hell's
Angels-“associate [ ] with” the colors black and
white, and typically wear any variation of those colors; the
Hell's Angels, the colors red and white. Both the Mongols
and the Hell's Angels claim Central California as their
territory, although the Hell's Angels are a
“dominant presence” in Northern California,
including the Merced area.

According to Cervantes, it is common for the Mongols to have
large parties. Their standard protocol for such events is to
rent hotels or other facilities and run their own security.
When coming into enemy territory, Mongols are completely
self-regulated. They stay where they are at, such as at a
hotel they know is going to be safe. In Cervantes's
experience, when the Mongols are together in large groups at
a hotel or at an event, law enforcement has very few problems
with them. When small groups leave and go to bars or other
public places, however, simple fights, stabbings, shootings,
or assaults occur.

Cervantes related that a “rat pack”-when a person
gets jumped or beaten by multiple people-is a common activity
of the Mongols. Cervantes testified that Mongols are
indoctrinated into an “at war” mindset that is
“on guard” for the Mexican Mafia and, more
importantly, for Hell's Angels who are to be dealt with
“on[ sight]” which “included murder.”
A Mongol must “jump in” and “protect
[their] members” if a member of a Mongols' chapter
or organization is involved in any type of physical activity
or fight. Mongols are required to carry knives, and weapons
may be used even if the victim does not have one. The
Mongols' written protocol reminds members that what they
do reflects on the club, and to “[n]ever make the club
look bad.” When someone “disrespects” one
Mongol, it is viewed as extending to the whole group. Failing
to address the insult makes the club “look bad.”
Such failure could result in the individual being kicked out
of the club. Cervantes explained that a Mongol would not be
with the group long if he failed to act. Because
“disrespect” to one is “disrespect”
to all, if a group of Mongols were together and one was
“disrespected, ” the group would get involved. If
they were not armed (for instance, because they were in a bar
that checked for weapons at the door), then they would use
their feet (kicks), or bottles, or anything similar in the
attack. If they were armed, they would “go immediately
to” weapons. The entire group would participate in the
attack; they are empowered by numbers, acting as a group
solidifies their unity. Typically, they would assist each
other in getting rid of evidence.

In Cervantes's opinion, going into the Gustine Club and
yelling “Mongols, motherfuckers, Mongols, what's
up?” was to see “who wanted to disrespect their
presence.” Given his appearance, James could easily
have been mistaken for a Hell's Angel, and his response
to the group yelling out their gang name would have been
considered disrespectful. In Cervantes's opinion,
“disrespect ... ultimately ended up costing ... [James
his] life.” Cervantes viewed a video from the Pastime
Club and identified the Mongols who walked into the bar. The
group did not make contact with anyone inside, nor did they
order drinks. Instead, they looked around in “high
alert.” In Cervantes's experience, they were
identifying problems and/or rivals, meaning potential
Hell's Angels. Cervantes explained that the group was a
“war party.” They left the secured hotel, then
secured the bar. When nothing sparked their interest, either
the presence of Hell's Angels or disrespect, they left.
In Cervantes's opinion, the group was “on a
hunt.” They were in Northern California-where the
Hell's Angels dominate-and entered the bar looking for
issues. When they found no one, they went on to the next bar.
Although a Hell's Angel would be their preferred victim,
anyone disrespecting them would do. Cervantes opined that
when the group left the hotel that night, they were
“100 percent sure” this type of trouble was
possible and that somebody could die, although what occurred
was not a planned event.

DEFENSE EVIDENCE

Gary Mendonica was in the Gustine Club at the time of the
incident. He was watching television when some kind of
aerosol was discharged in the area behind him. He did not
recall hearing anyone yell “Mongols” or anything
similar. Mendonica ran outside. He did not really see a fight
outside, but he saw James stumble out and fall down.

Warner interviewed Morais outside the Gustine Club shortly
after the incident. Morais related that one person who came
into the club bumped into James, and that James said,
“What the fuck motherfucker.” Asked if the
individuals specifically targeted or went to James, Morais
said no.

Merced County Sheriff's Detective Taylor interviewed
Morais on November 7. Morais related he was about 20 to 25
feet from the door, and James was about eight feet down from
him toward the back, when a group of about six men came
“piling in.” One, who was wearing a black, gray,
and white-checkered flannel shirt, said, “Mongols
motherfucker, what's up? Mongols. What's up?
What's up? Mongols. Mongols.” As the man walked by,
Morais saw him reach into his pocket and make a motion, and
then heard a sound he knew was a knife. Out of the corner of
his eye, he saw James quickly turn around. Morais thought
somebody bumped into him, or perhaps it was when the man
yelled “Mongols.” Whatever the reason, the group
went straight to James and were “on him” all at
once. The man with the knife looked like he punched James in
the upper torso. According to Morais, the group were all
wearing Mongol “one-percenter” T-shirts, white
with black print, but no vests. Someone discharged pepper
spray then they all “rush[ed] out.” Morais
related he managed to get outside where he saw a gray or
silver extended-cab pickup. The passenger side door was open.
James was standing in the door, “cracking”
somebody inside the truck. Someone then came from
Morais's left. Morais jumped up to grab him, but
something happened and Morais fell. When he looked up, he saw
the man hit James twice in the back. Morais described the man
as five feet seven or eight inches tall, between 180 and 210
pounds, short and squatty, with a “[b]ig mouth on
him.”[16] This was one of the first men who walked
in, and it was the one yelling “Mongols motherfucker,
Mongols.” The man who hit James did not get into the
truck, but got into his own vehicle. There was a white
vehicle on the other side of the truck.

Detective Clark talked to defendant shortly after defendant
was detained. Clark observed no obvious signs that defendant
had been in a fight.

James Hernandez, a professor of criminal justice at
California State University, Sacramento, testified as a gang
expert. Hernandez disagreed with Cervantes's assessment
of the group “storming” the Pastime Club. In
Hernandez's opinion, the video simply showed a group of
men going into a bar. He opined that they walked toward the
restroom to use the bathroom. Based on his review of various
reports and other materials, Hernandez did not believe the
group left the hotel looking for trouble. He found nothing to
suggest James could have been confused with, or identified
as, a Hell's Angel. Hernandez disagreed with
Cervantes's opinion that the group was a war party, and
found nothing unusual in the group looking around their
location.

Hernandez did not believe it was necessarily true that every
Mongol present would have participated in the stabbing. He
explained there were a growing number of situations in which
an altercation began and members of the club dragged their
own people away. He found a lot of the behavior of the outlaw
motorcycle clubs to have changed “drastically” in
the few years before trial.

Robert Shomer, an experimental psychologist, testified as an
expert on eyewitness identification. He explained that
eyewitness identification of a stranger has a low level of
reliability, especially if the identification is made under
circumstances including a sudden, unexpected event; multiple
individuals; high stress; some kind of impairment of the
eyewitness such as fatigue, drugs, alcohol, or the focus of
attention; the lighting; and the distance. Further, the
identification procedure itself, if not done correctly,
taints, alters, and sometimes ruins the evidence. The police
must get as much information as possible from the witness
before showing him or her anything, because showing the
witness something alters the evidence. Memory is dynamic and
incorporates information obtained from other people. The most
accurate reports are the initial reports made by a witness,
after he or she has had a little time to calm down. The
initial reports do not suffer from memory decay or, to the
extent witnesses can be kept from talking to each other, from
incorporation of information from other people.

In answer to a hypothetical question based on evidence
adduced at trial, Shomer opined the situation was not one in
which perceptions would be expected to be highly accurate. If
eyewitnesses were shown a video taken at the first location,
but no video of the second location where the stabbing
occurred, and they were then shown photographic lineups, the
procedure would be suggestive and tainting, and likely to
change the evidence in the witness's head. The procedure
could produce a false identification.

Silva, 2014 WL 350590, at *1-7 (footnotes in
original).

III.
STANDARD OF REVIEW

Relief
by way of a petition for writ of habeas corpus extends to a
person in custody pursuant to the judgment of a state court
if the custody is in violation of the Constitution or laws or
treaties of the United States. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(c)(3); Williams v. Taylor, 529
U.S. 362, 375 (2000). Petitioner asserts that he suffered
violations of his rights as guaranteed by the U.S.
Constitution. The challenged convictions arise out of the
Merced County Superior Court, which is located within the
Eastern District of California. 28 U.S.C. § 2241(d).

On
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which applies to all petitions for writ of habeas corpus
filed after its enactment. Lindh v. Murphy, 521 U.S.
320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499
(9th Cir. 1997) (en banc). The instant petition was filed
after the enactment of the AEDPA and is therefore governed by
its provisions.

Under
the AEDPA, relitigation of any claim adjudicated on the
merits in state court is barred unless a petitioner can show
that the state court's adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.

As a
threshold matter, this Court must “first decide what
constitutes ‘clearly established Federal law, as
determined by the Supreme Court of the United
States.'” Lockyer, 538 U.S. at 71 (quoting
28 U.S.C. § 2254(d)(1)). In ascertaining what is
“clearly established Federal law, ” this Court
must look to the “holdings, as opposed to the dicta, of
[the Supreme Court's] decisions as of the time of the
relevant state-court decision.” Williams, 529
U.S. at 412. “In other words, ‘clearly
established Federal law' under § 2254(d)(1) is the
governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its
decision.” Id. In addition, the Supreme Court
decision must “‘squarely address [] the issue in
th[e] case' or establish a legal principle that
‘clearly extend[s]' to a new context to the extent
required by the Supreme Court in . . . recent
decisions”; otherwise, there is no clearly established
Federal law for purposes of review under AEDPA. Moses v.
Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting
Wright v. Van Patten, 552 U.S. 120, 125 (2008));
Panetti v. Quarterman, 551 U.S. 930 (2007);
Carey v. Musladin, 549 U.S. 70 (2006). If no clearly
established Federal law exists, the inquiry is at an end and
the Court must defer to the state court's decision.
Musladin, 549 U.S. 70; Wright, 552 U.S. at
126; Moses, 555 F.3d at 760.

If the
Court determines there is governing clearly established
Federal law, the Court must then consider whether the state
court's decision was “contrary to, or involved an
unreasonable application of, [the] clearly established
Federal law.” Lockyer, 538 U.S. at 72 (quoting
28 U.S.C. § 2254(d)(1)). “Under the
‘contrary to' clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the] Court has on a set of materially indistinguishable
facts.” Williams, 529 U.S. at 412-13; see
also Lockyer, 538 U.S. at 72. “The word
‘contrary' is commonly understood to mean
‘diametrically different, ' ‘opposite in
character or nature, ' or ‘mutually
opposed.'” Williams, 529 U.S. at 405
(quoting Webster's Third New International Dictionary 495
(1976)). “A state-court decision will certainly be
contrary to [Supreme Court] clearly established precedent if
the state court applies a rule that contradicts the governing
law set forth in [Supreme Court] cases.” Id.
If the state court decision is “contrary to”
clearly established Supreme Court precedent, the state
decision is reviewed under the pre-AEDPA de novo standard.
Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
(en banc).

“Under
the ‘reasonable application clause, ' a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Williams,
529 U.S. at 413. “[A] federal court may not issue the
writ simply because the court concludes in its independent
judgment that the relevant state court decision applied
clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.”
Id. at 411; see also Lockyer, 538 U.S. at
75-76. The writ may issue only “where there is no
possibility fair minded jurists could disagree that the state
court's decision conflicts with [the Supreme Court's]
precedents.” Richter, 562 U.S. at 102. In
other words, so long as fair minded jurists could disagree on
the correctness of the state court's decision, the
decision cannot be considered unreasonable. Id. If
the Court determines that the state court decision is
objectively unreasonable, and the error is not structural,
habeas relief is nonetheless unavailable unless the error had
a substantial and injurious effect on the verdict. Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993).

The
court looks to the last reasoned state court decision as the
basis for the state court judgment. Stanley v.
Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Robinson
v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the
last reasoned state court decision adopts or substantially
incorporates the reasoning from a previous state court
decision, this court may consider both decisions to ascertain
the reasoning of the last decision. Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc).
“When a federal claim has been presented to a state
court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law
procedural principles to the contrary.”
Richter, 562 U.S. at 99. This presumption may be
overcome by a showing “there is reason to think some
other explanation for the state court's decision is more
likely.” Id. at 99-100 (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991)).

Where
the state court reaches a decision on the merits but provides
no reasoning to support its conclusion, a federal habeas
court independently reviews the record to determine whether
habeas corpus relief is available under § 2254(d).
Stanley, 633 F.3d at 860; Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
“Independent review of the record is not de novo review
of the constitutional issue, but rather, the only method by
which we can determine whether a silent state court decision
is objectively unreasonable.” Himes, 336 F.3d
at 853. While the federal court cannot analyze just what the
state court did when it issued a summary denial, the federal
court must review the state court record to determine whether
there was any “reasonable basis for the state court to
deny relief.” Richter, 562 U.S. at 98. This
court “must determine what arguments or theories ...
could have supported, the state court's decision; and
then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the
Supreme] Court.” Id. at 102.

IV.
REVIEW OF CLAIMS

A.
Trial Court's Instructions

1.
Trial Court's Response to Jury Question

In his
first claim for relief, Petitioner asserts that the trial
court failed to resolve the jury's confusion about the
elements of aiding and abetting liability, in violation of
due process. (ECF No. 1 at 22).[17] Respondent argues that
the state court's denial of the claim was reasonable and
that the trial court's reference to the wrong jury
instruction number in its response did not have a substantial
and injurious effect or influence on the verdict. (ECF No. 17
at 25).

In
denying Petitioner's due process claim with respect to
the trial court's alleged failure to resolve the
jury's confusion about the elements of aiding and
abetting liability, the California Court of Appeal stated:

RESPONSE TO JURY'S QUESTION

Defendant says the trial court violated his due process
rights by failing to clear up the jury's confusion about
the elements of aiding and abetting. We conclude the trial
court acted within its discretion.

A. Background

Defendant was tried as an aider and abettor. In pertinent
part, the jury was instructed, pursuant to CALCRIM No. 400
(Aiding and Abetting: General Principles):

“A person may be guilty of a crime in two ways: One, he
or she may have directly committed the crime. I will call
that person the perpetrator. Two, he or she may have aided
and abetted that perpetrator who directly committed the
crime. A person is guilty of the crime whether he or she
committed it personally, or aided and abetted the
perpetrator.

“Under some specific circumstances if the evidence
establishes aiding and abetting in one crime, and
[sic] a person may also be found guilty of other
crimes that occurred during the commission of the first
crime.”

“To prove that the defendant is guilty of a crime based
on aiding and abetting that crime, the People must prove
that: One, the perpetrator committed the crime; two, the
defendant knew that the perpetrator intended to commit the
crime; three, before or during the commission of the crime
the defendant intended to aid and abet the perpetrator in
committing the crime; and four, the defendant's words or
conduct did, in fact, aid and abet the perpetrator's
commission of the crime.

“Someone aids and abets a crime if he or she knows of
the perpetrator's unlawful purpose and he or she
specifically intends to and does in fact aid, facilitate,
promote, encourage or instigate the perpetrator's
commission of that crime.

“If all of these requirements are proved the defendant
does not need to actually have been present when the crime
was committed to be an aider and abettor.

“If you conclude that the defendant was present at the
scene of the crime and failed to prevent the crime you may
consider that fact in determining whether the defendant was
an aider and abettor. However, the fact that a person is
present at the scene of a crime or fails to prevent the crime
does not, by itself, make him or her an aider and
abettor.”

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